New York Employment Law Update – July 2018

July 30th, 2018

Employer Compensation Expense Program

On July 3, 2018, the New York Department of Taxation and Finance released technical memorandum TSB-M-18(1)ECEP detailing the state’s Employer Compensation Expense Program (ECEP). The ECEP was established as a new optional Employer Compensation Expense Tax (ECET) that employers may elect to pay if they have employees that earn more than $40,000 annually in wages and compensation in the state of New York.

The ECET is being phased in over three years as follows:

For quarters in tax year 2019, the rate of tax is 1.5 percent.

For quarters in tax year 2020, the rate of tax is 3 percent.

For quarters in tax year 2021 and thereafter, the rate of tax is 5 percent.

The ECET was enacted in response to the federal Tax Cuts and Jobs Act to protect individual taxpayers from increased federal income taxes resulting from the $10,000 cap on state and local tax deductions under the act.

New York City Temporary Schedule Change Law

The New York City Department of Consumer Affairs (DCA) Office of Labor Policy & Standards released a notice, You Have a Right to Temporary Changes to Your Work Schedule, required under the city’s Temporary Schedule Change Law. The notice must be posted where employees can easily see it at each workplace in New York City. Employees also have a right to be given this notice in English and in any language that is the primary language of at least 5 percent of the workers at their workplace if the translation is available on the DCA website.

The DCA also released the following informational materials regarding the Temporary Schedule Change Law:

Regulations Prohibiting Harassment and Discrimination on the Basis of Gender Identity

On June 24, 2018, New York Governor Andrew Cuomo announced a series of state actions to counter expected efforts by the federal government to legalize discrimination against transgender individuals seeking access to health care. According to the announcement, the federal administration proposed repealing a federal regulation that clarifies that the Affordable Care Act’s nondiscrimination protections based on sex include protections based on gender identity.

Anticipating the rollback, the Governor:

Directed the New York State Department of Health to issue regulations prohibiting health care providers from discriminating against transgender patients and requiring all hospitals in the state to update their statements of patient rights to prohibit discrimination against transgender patients. Read the department’s proposed regulation.

Directed the New York State Department of Financial Services to issue regulations expanding the scope of antidiscrimination protections for transgender individuals regarding access to health insurance, and to issue a circular letter reminding industry participants that discrimination on the basis of gender identity is already prohibited in New York in certain policies. Read the department’s circular letter and the proposed regulation.

The Division of Human Rights also issued a public fact sheet reminding New Yorkers that the New York State Human Rights Law specifically applies to hospitals and prohibits discrimination on the basis of gender identity. The division administers and enforces the Human Rights Law and encourages individuals who believe they have been discriminated against to contact them.

Westchester County and Salary History

On March 26, 2018, the County Board of Westchester County, New York passed a resolution making it an unlawful discriminatory practice for an employer to rely upon, request, or seek the wage history of a job applicant. Under the resolution, an employer may not:

Require an applicant to disclose his or her salary history as a prerequisite to an interview, as further consideration in the hiring process, or as a condition of employment.

Retaliate against any applicant who withholds his or her salary history, including refusing to hire the applicant.